Appellate Division Affirms Summary Judgment

Where Flooding Was Due To Hurricane Irene

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent case decision by the Appellate Division affirming summary judgment.

In July, 2014 we reported on a case that we had defended where we had won summary judgment which arose from Hurricane Irene in 2011. In Leary v. Dutchess Apartment Associates, LLC, Hurricane Irene penetrated the defendants’ apartment building's lower level and flooded the plaintiffs’ apartment along with several other units in an unprecedented fashion.  As a result, the plaintiffs’ carpets were wet, however the bathroom remained dry.  The building management planned to remove the wet carpets the next day.  The day after the flooding, the plaintiff walked into his dry bathroom with wet slippers and fell.  The slippers had become wet when he walked over the wet carpet and into the bathroom.  Plaintiff sued, alleging that the defendants were negligent in not completely removing the wet carpet on the day of the flooding.  In addition, the plaintiffs argued that Hurricane Irene should not be considered an "Act of God", and that defendants should have taken preventative measures prior to the flooding.

We moved for summary judgment which was granted. We argued there was no triable issue of fact since the plaintiffs had failed to establish that the defendants breached a duty of care or that the defendants had actual or constructive notice of a dangerous or defective condition.  We noted that it was unreasonable to expect the defendants to remove all of the wet carpets on the same day as the flooding.  In addition, we argued that plaintiff did not slip on the wet carpet, rather he knowingly walked on the carpet with slippers and fell in his dry bathroom where one would expect a wet a floor. We argued in addition that the defendants could not have taken unknown measures to prevent the flooding since the plaintiffs made no showing that the defendants had reason to know that the apartment would flood in an extreme weather event, which it had never flooded at anytime prior to the date of the loss.  In fact, we noted that the plaintiff testified that at no time during the three years that they lived at the apartment complex, did the apartment ever take water other than from Hurricane Irene. 

The plaintiff appealed to the Appellate Division. The Second Department affirmed summary judgment dismissing the complaint. The Court found that the defendants established a prima facie entitlement as a matter of law by demonstrating they did not create the allegedly condition and that it did not exist for a sufficient length of time for them to remedy it. The Appellate Division found that the plaintiffs had failed to raise a triable issue of fact in opposition and that the Supreme Court had properly granted the defendants motion for summary judgment dismissing the complaint.

Lack of notice is always a defense that should be explored in slip and fall cases and if the facts support it, a motion for summary judgment should be considered. It will help to dispose of questionable liability claims

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